LAXMAN Vs. CHAMPALAL

JUDGEMENT

(1.) THIS appeal has been preferred against the judgment passed by the learned Additional Sessions Judge No. 1, Jodhpur 31 -1 -1976.

(2.) BRIEFLY stated the facts of the case giving rise to this appeal are that Kamla aged about 10 years along with her mother Mst. Sugani came to the house of the complainant Laxman at Jodhpur on their way to Bhopalgarh where they were going to attend some marriage ceremony On 24 -6 -197l when Mst. Sugani had gone for marketing, Laxman and Kamla remained at the house. The respondents along with few others are said to have gone to the house of Laxman and forcibly dragged Mst. Kamla and kidnapped her. On the information of Mst. Sugani, the case was registered for the offence of kidnapping but after investigation final report was filed in the court which was accepted by the Magistrate. In the mean -while on 7 7 -1971, Laxman filed a complaint under Sections 366, 342, 109 and 379 Indian Penal Code against the respondents. The learned Magistrate took cognizance of the case. conducted the committal proceedings and after completion of the committal proceedings, committed the respodents to the court of sessions to stand their trial for the offences under Sections 366 and 342 Indian Penal Code. The case was transferred to the court of Additional Sessions Judge No.l, Jodhpur. The learned Additional Sessions Judge No. 1, heard the arguments on the question of charge and by his order dated 15th November, 1975, discharged respondents Nos. 6 and 7 Dayaram and Pukhraj respectively. The remaining five respondents were charge sheeted for the offence under Section 366 and 147 Indian Penal Code. The charges were explained to them and their plea was recorded and all of them denied the charges and claimed to be tried. Prosecution examined three witnesses The learned Additional Sessions Judge in view of the statements of the prosecution witnesses observed that there was no evidence worth the name against the accused and so he did not find any necessity to record the statements of the accused under Section 313 Criminal Procedure Code After hearing the arguments of the parties, he passed the judgment of acquittal under appeal. Being aggrieved by that judgment, complainant Laxman has preferred this appeal in this Court after obtaining leave.

(3.) THE appeal has been filed under Section 378 Criminal Procedure Code That section provides for appeal in case of acquittal It cannot be disputed that no appeal lies against an order of discharge and such an order can be challenged only by way of revision We are unable to agree with the learned Counsel for the appellant that the order of discharge has merged in the judgment of acquittal and both of them can be challenged by way of appeal. The prayer in this appeal is for setting aside the judgment and no where it has been mentioned in the mmemo of appeal that there was any illegality in the order of discharge or the same may be set aside. Even if it would have been so, the position of law being clear, the appeal was not entertainable against respondents Nos.6 and 7 who have not faced the trial and were discharged under Section 227 Criminal Procedure Code. In the case of Nagar Mahapalika, Varanasi v. A V. Dubey 1978 Cr. LJ 1467 relied on by Mr. Jodha, it has been observed that appeal under Section 417 Criminal Procedure Code (old) is not competent against an order of discharge Mr. Jodha during the course of arguments fairly conceded that the appeal against order of discharge is not maintainable but at the same time urged that there is law on the point that such appeals may be converted into revision petitions and disposed of according to law. In support of his contention, he again referred to the aurhority just cited above. In that case also a preliminary objection about the maintainability of appeal against the order of discharge was taken and with the observation referred to above, it was held that appeals were not maintainable. In that case the leave for filing the appeal having been granted by the High Court against the order of discharge on some misapprehension, it was thought expedient in the interest of justice to convert the appeals into revisions and to dispose them in accordance with law.